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that the principle of separation of powers forbids the granting of injunctive relief by the District Court in a case such as this. We have juisdiction to review the completed acts of the

of the Legislative and Executive Branches. See, e.g., Marbury v. Madison, 1 Cranch 137 (1803); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Kilbourn v. Thompson, supra. But the prospect of the District Court's enjoining a committee of Congress, which, in the legislative scheme of things, is for all practical purposes Congres itself, from undertaking to publicly distribute one of its reports in the manner that Congress has by statute prescribed that it be distributed, is one that I believe would have boggled the minds of the Framers of the Constitution.

In Mississippi v. Johnson, 4 Wall. 475 (1867), an action was brought seeking to enjoin the President from executing a duly enacted statute on the ground that such executive action would be unconstitutional. The Court there expressed the view that I believe should control the availability of the injunctive relief here:

The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cogni

zance. Id., at 500. In Kilbourn v. Thompson, supra, the Court reviewed the arrest and confinement of a private citizen by the Sergeant at Arms of the House of Representatives. In Watkins b. United States, 354 U.S. 178 (1957), the Court reviewed the scope of the investigatory powers of Congress when the executive had prosecuted a recalcitrant witness and sought a judicial forum for the purpose of imposing criminal sanctions on him. Neither of these cases comes close to having the mischievous possibilities of censorship being imposed by one branch of the Government upon the other as does this one.

In New York Times Co. v. United States, 403 U.S. 713 (1971), this Court held that prior restraint comes before it bearing a heavy burden. Id., at 714. Whatever may be the difference in the constitutional posture of the two situations, on the issue of injunctive relief, which is nothing if not a form of prior restraint, a Congressman should stand in no worse position in the federal courts than does a private publisher. Cf. Hurd v. Hodge, 334 U.S. 24, 34-35 (1948). Purely as a matter of regulating the exercise of federal equitable jurisdiction in the light of the principle of separation of powers, I would foreclose the availability of injunctive relief against these respondents.

No. 73-1923

EASTLAND ET AL.

U.

UNITED STATES SERVICEMEN'S FUND ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 1975. Decided May 27, 1975. The Senate Subcommittee on Internal Security, pursuant to its authority under a Senate resolution to make a complete study of the administration, operation, and enforcement of the Internal Security Act of 1950, began an inquiry into the various activities of respondent organization, to determine whether they were potentially harmful to the morale of United States Armed Forces. In connection with such inquiry it issued a subpoena duces tecum to the bank where the organization had an account, ordering the bank to produce all records involving the account. The organization and two of its members then brought an action against the Chairman, Senator Members, Chief Counsel of the Subcommittee, and the bank to enjoin implementation of the subpoena on First Amendment grounds. The District Court dismissed the action. The Court of Appeals reversed, holding that, although courts should hesitate to interfere with congressional actions even where First Amendment rights are implicated, such restraint should not preclude judicial review where no alternative avenue of relief is available, and that if the subpoena was obeyed respondents' First Amendment rights would be violated. Held: The activities of the Senate Subcommittee, the individual Senators, and the Chief Counsel fall within the “legitimate legislative sphere," and since it is determined that such is the case, those activities are protected by the absolute prohibition of the Speech

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or Debate Clause of the Constitution against being "questioned in any other Place" and hence are immune from judicial interference. Pp. 501-511.

(a) The applicability of the Clause to private civil actions is supported by the absoluteness of the term “shall not be questioned” and the sweep of the term "in any other place.” P. 503.

(b) Issuance of subpoenas such as the one in question is a legitimate use by Congress of its power to investigate, and the subpoena power may be exercised by a committee acting, as here, on behalf of one of the Houses. Pp. 503-505.

(c) Inquiry into the sources of the funds used to carry on activities suspected by a subcommittee of Congress to have a potential for undermining the morale of the Armed Forces is within the legitimate legislative sphere. Pp. 505-507.

(d) There is no distinction between the Subcommittee's Members and its Chief Counsel insofar as complete immunity from the issuance of the subpoena under the Speech or Debate Clause is concerned, and since the Members are immune because the issuance of the subpoena is “essential to legislating,” their aides share that immunity. P. 507.

(e) The subpoena cannot be held subject to judicial questioning on the alleged ground that it works an invasion of respondents' privacy, since it is “essential to legislating.” P. 508.

(f) Nor can the subpoena be held outside the protection of speech or debate immunity on the alleged ground that the motive of the investigation was improper, since in determining the legitimacy of a congressional action the motives alleged to have prompted it are not to be considered. Pp. 508-509.

(g) In view of the absolute terms of the speech or debate protection, a mere allegation that First Amendment rights may be infringed by the subpoena does not warrant judicial interference. Pp. 509511.

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